Melsom v Deputy President Forrest

[1996] FCA 379

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - refusal of application to join trustees in proceeding before Administrative Appeals Tribunal to review decision of Inspector‑General refusing requests to review decision of trustees to file notices of objection to discharge from bankruptcy - whether refusal of joinder unreasonable - whether refusal founded on failure to consider relevant considerations - whether refusal involved error of law in failure to evaluate relevant factors

Administrative Appeals Tribunal Act, s30(1A), s30(1)(b), s44(2),
Administrative Decisions (Judicial Review) Act 1977, s5, s10(2)
Bankruptcy Act, s11, s12, s51, s149D, s149K, s149P, S149Q
Rules of the Federal Court of Australia, O20 r1, O45 r7

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Bromley London Borough City Council v Greater London Council [1983] 1 AC 768
Re C v Collector of Customs (NSW) (1983) 5 ALN N222
Re City of Doncaster and Templestowe and the Minister for Community Services (1987) 6 AAR 105
Re Marine World (Victoria) Ltd v Minister for Arts, Heritage and the Environment (1986) 10 ALD 262
Re Sew Eurodrive Pty Ltd v Collector of Customs (1994) 20 AAR 376
Turner v Minister for Immigration (1981) 35 ALR 388

PETER MICHAEL MELSOM and STANLEY FREDERICK ROBSON v DEPUTY PRESIDENT B M FORREST and MARIE SPINELLY and JACQUES SPINELLY   NO WAG 120 OF 1995

R D NICHOLSON J
PERTH
23 MAY 1996

IN THE FEDERAL COURT OF AUSTRALIA            )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION  )                   NO WAG 120 OF 1995

B E T W E E N:  PETER MICHAEL MELSOM and STANLEY FREDERICK ROBSON

Applicants

and

DEPUTY PRESIDENT B M FORREST

First Respondent

and

MARIE SPINELLY and JACQUES SPINELLY

Second Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER:            R D NICHOLSON J

DATE OF ORDER:  23 MAY 1996

WHERE MADE:  PERTH

THE COURT ORDERS THAT:

1.The application dated 24 October 1995 for an order of review be dismissed.

2.The Notice of Objection to Competency and the Notice of Motion each dated 8 November 1995 and filed on behalf of the second respondents be dismissed by consent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA            )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION  )                   NO WAG 120 OF 1995

B E T W E E N:  PETER MICHAEL MELSOM and STANLEY FREDERICK ROBSON

Applicants

and

DEPUTY PRESIDENT B M FORREST

First Respondent

and

MARIE SPINELLY and JACQUES SPINELLY

Second Respondents

CORAM:R D NICHOLSON J

DATE:23 MAY 1996

PLACE:PERTH

REASONS FOR JUDGMENT

The applicants seek to review the decision of the first respondent made on 13 September 1995 to the effect that the application by them to be joined as a party to proceedings in the Administrative Appeals Tribunal be refused. 

On behalf of the second respondents a notice of motion was filed seeking a stay or dismissal of the application pursuant to Rules of the Federal Court of Australia ("FCR") O20 r1, or dismissal pursuant to s10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR"), or alternatively in the exercise of the Court's discretion. In addition, there was filed on behalf of the second respondents a notice of objection to competency in which objection was taken to the jurisdiction of this Court on the grounds the relevant decision was not a "decision" within the meaning of s5 of the ADJR and the
application should be brought, if at all, by appeal pursuant to s44(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").

These notices were prepared and filed by the second respondents' Melbourne solicitors in conjunction with Perth agents.  On 29 February 1996 notice of change of solicitors to a Perth firm was lodged.  On 22 April 1996 the Perth solicitors lodged a notice of withdrawal pursuant to FCR O45 r7.  The consequence was that the first named second respondent ("Mrs Spinelly") appeared on the hearing of this application on behalf of herself and the second named second respondent ("Mr Spinelly").

In addition, counsel for the applicants advised he had been notified by the solicitors for the second respondents that neither of the notices would now be pursued on behalf of the second respondents.  While Mrs Spinelly vigorously contested this application she was not in a position to nor did she pursue the technical matters raised by either of the notices.  The issues were therefore not argued at the hearing.  In any event, as will appear, I do not consider the second respondents' case is adversely affected by that fact.

Objections were taken to the admissibility of pars14, 15 and 16 of the affidavit of Mrs Spinelly sworn on 17 November 1995.  I allow the objections. 

The matter came before the first respondent for decision as a result of the following steps.

Objections to discharge from bankruptcy by applicants

The second respondents became bankrupt on 29 May 1991. On 28 April 1994 the applicants as trustees for the second respondents lodged objections to the discharge of each of them. In each case the ground of objection pursuant to s149D(1)(d) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act") was that the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, failed to comply with the request. Likewise in each case the first ground of objection pursuant to s149D(1)(g)(i) and (ii) of that Act was that at any time during the period of five years immediately before the commencement of bankruptcy, or at any time during
the bankruptcy, the bankrupt spent money but failed to explain adequately to the trustee the purpose for which the money was spent, or disposed of property but failed to explain adequately to the trustee why no money was received as a result of the disposal or what the bankrupt did with the money received as a result of the disposal.

In the statement of evidence in each notice relied upon to support the grounds of objection it was recited that Mrs Spinelly had been employed as a bookkeeper by Kelvin Ernest Lord ("Lord") patent and trade mark attorney in Western Australia from December 1986 until March 1988.  Further, in the Supreme Court of Western Australia it was held on 21 May 1991 in an action between Lord as plaintiff and Mrs Spinelly as defendant that judgment be entered for Lord against Mrs Spinelly in the sum of $166,139.69 with interest in the sum of $85,473.25.  It was ordered that costs be taxed upon the basis that during the period of her employment Mrs Spinelly had stolen from Lord the sum of $166,139.69. 

Further, on the same date in the same court in an action between Keldin Secretarial Services Pty Ltd ("Keldin") as plaintiff and Mrs Spinelly as defendant, she was ordered to pay Keldin the sum of $21,908.90 and interest in the sum of $11,631.25 with costs to be taxed upon the basis that during the period of her employment she had stolen from Keldin the sum of $21,908.90.

Further it is said that in a third Supreme Court action, Lord as plaintiff alleged that Mr Spinelly was liable upon the basis that the sum of $166,139.69 stolen by Mrs Spinelly had been used to his benefit but, after trial of the action, Mr Spinelly through his counsel agreed to a consent order that judgment be entered for Lord against him in the sum of $25,638.00 and the bankrupt pay the costs of the action.

The consequence is that Lord is the main creditor of each of the second respondents.

It is maintained in the objections that each of the second respondents, when requested by the trustees to provide written information about their property, had consistently failed to comply with those requests.

The notices of objection also recite that in the case of Mrs Spinelly she had been represented by counsel upon a trial before a judge and jury in the District Court of Western Australia on a charge that she stole monies from Lord and Keldin but was acquitted.  It is recited that she repeats and maintains she did not misappropriate any of Lord's funds despite the finding in the civil cases against her.  It is also recited that the applicants are of the view that she is bound by the finding of fact in the civil decisions.

The objections state it is the view of the applicants as trustees that it is entirely contrary to public policy that either of the second respondents should at the expiration of three years from the date of each of their bankruptcies be entitled to a discharge and release from all debts owing to Lord and Keldin when they have refused to disclose what has happened to all the monies stolen by Mrs Spinelly. 

In the case of Mr Spinelly it is asserted in the objections he has in effect conceded he had done wrong by consenting to the judgment being entered against him in the sum of $25,638.00 plus costs.

In the case of Mrs Spinelly there is a further ground of objection pursuant to s149D(1)(d) of the Bankruptcy Act constituted by a failure to comply with the request for written information. It is also objected pursuant to s149D(1)(n) that Mrs Spinelly failed to disclose a beneficial interest in property, having failed to disclose her interest in the property in Mauritius. It is maintained by the applicants in the objection that Mrs Spinelly has attempted to conceal the existence of the Mauritius property and the nature of her interest in it.

In the case of Mr Spinelly there is a second ground of objection pursuant to s149D(1)(g)(i) of the Bankruptcy Act namely, that he has spent money but failed to explain adequately to the trustee the purpose for which the money was spent.  This is particularised in relation to monies he is said to have borrowed from Westpac Banking Corporation.

Requests by second respondents to Inspector-General for review

By applications dated 22 June 1994 each of the second respondents requested the Inspector-General to review the decision of the applicants to file a notice of objection to their discharge from bankruptcy. That request was made pursuant to the authority provided to that effect by s149K(3) of the Bankruptcy Act. The Inspector-General undertook a review of those decisions as he was empowered to do by s149K(1)(b) of that Act.

In the request filed on her behalf, Mrs Spinelly asserts that the principal creditor Lord "is involved in a systematic scheme to pursue and punish me for personal reasons".  She states she commenced a sexual relationship with him during the period of her employment until March 1988 when she was dismissed, the reason given then for the dismissal being that she had misappropriated funds.  She asserts the real reasons for her dismissal were firstly, she had told Lord she did not wish to continue the sexual relationship and secondly, she had refused to open another bank account for him which she believed was to be used "for improper purposes".  She stated that during the time of her relationship with Lord he made gifts to her of personal property to the value of $40,000.00 or thereabouts.

Her request then recites the fact that she was charged with stealing $180,000.00 from Lord and his company and she was acquitted after a trial lasting five days which left her with no funds.

She then refers to the issue of civil recovery proceedings by Lord. 

In further particulars Mrs Spinelly denies there is any proof that she misappropriated any of Lord's money "other than a judgment obtained against me".  She states that had she been physically and financially strong, she would have appealed against that judgment without hesitation.  She then states:

"I deny and I have consistently denied that I stole any money from Lord and his company.  The finding of the Supreme Court was, with respect, incorrect...  While I am bound by the order of the Court to repay the judgment debt I cannot explain what I have done with monies I have never had."

In relation to the property in Mauritius, Mrs Spinelly's request states that she did not have any beneficial interest in that property and will not do so until after her parent's death.  She had made voluntary disclosure of the existence of the property in a statutory declaration on 2 September 1991. 

Furthermore, she asserts in the request that she is being victimised and harshly treated by the applicants as trustees and by the creditor Lord "who bears me ill‑will for personal reasons".

In his request, Mr Spinelly states that after Mrs Spinelly's dismissal by Lord in March 1988 he came to realise that the gifts of money and personal effects "were in appreciation by Lord of that relationship".  The judgment to which he had consented in the sum of $25,638.00 was approximately the value of the gifts made by Lord to his wife from which he derived a benefit and which were mainly improvements to the family home.  He said he consented to the order as one way of finalising the matter and not as an admission of any wrong-doing by him or the receipt of any improper benefit by him.

In further particulars in his request he denies receiving any cash benefit whatsoever as a result of his wife's relationship with Lord and says he is therefore unable to account for funds which he never received.  He asserts the problem is that the applicants as trustees will not accept the answers provided. 

In relation to the loan from Westpac, he states he borrowed $8,000 from that bank for legal fees.  Until he and Mrs Spinelly became bankrupt he had paid $230.00 per month to the bank in reduction of the loan.  The balance of the loan had been paid out by the father of the guarantor. 

Inspector-General's decisions

On 1 August 1994 the Inspector-General advised the solicitors for the second respondents of the outcome of his review. 

In the case of Mrs Spinelly his decision was that subsequent to the date of her bankruptcy and, despite being requested on a number of occasions by the trustees to provide details of her property, she had failed to comply with the request.  Further, she had also failed to disclose on her statement of affairs her beneficial interest in property in Mauritius.  He therefore confirmed the decision of the trustees in her case. 
In the case of Mr Spinelly he also found that there was a failure to comply with requests and therefore confirmed the decision of the trustees on this first ground.  He rejected the second ground, stating that Mr Spinelly had provided adequate information to his trustees to satisfy them that payments made to Westpac and the guarantors were made for the purpose of repaying personal loans obtained by the bankrupt to meet legal costs.

Application by second respondents to AAT for review of Inspector-General's decision

The solicitors for the second respondents then made application pursuant to s149P(3) and s149Q of the Bankruptcy Act to the Administrative Appeals Tribunal for review of the decisions of the Inspector-General. 

Application by applicants to be joined as parties in AAT

By letters dated 4 and 10 April 1995 the solicitors for Lord and for the applicants applied for those persons to be made a party to the proceedings before the Administrative Appeals Tribunal: see AAT Act, s30(1A).

On 27 April 1995 the solicitors for the second respondents advised the Tribunal they objected to the applications by Lord and by the applicants to be made parties to the Tribunal proceeding.

First hearing of joinder application

On 8 June 1995 the first respondent heard the applications.  The second respondents were represented by counsel.  Mr Lord appeared in person; there was no appearance by or on behalf of the applicants.  Their application was dismissed for lack of appearance.  Lord's application was dismissed in the exercise of the first respondent's discretion.

Second hearing of joinder application

By letter dated 12 June 1995 the solicitors for the applicants sought a reinstatement of their application.  The matter came on for hearing on 13 September 1995.  Counsel again represented the second respondents.  Counsel for the applicants appeared by video link.  The first respondent granted the application to reinstate the joinder application but dismissed the application for joinder.

In his written reasons for so resolving the application, the first respondent first concluded the trustee's application should be reinstated. He then concluded the applicants' interest as trustees were affected within the meaning of s30(1A) of the AAT Act.  He then continued:

"The second limb of sub-s30(1A) is the question of the exercise of discretion.  It does not follow that the discretion necessarily be exercised in favour of the person whose interests are affected - see Re City of Doncaster and Templestowe and the Minister for Community Services (1987) 6 APR 105.  In a written submission, supplemented by oral submissions this morning, Mr O'Hara, solicitor for the Trustees contended that the Trustees are in a better position than the Inspector-General to conduct what may be termed as the defence to the bankrupts' challenge to the decision under review.  He also submitted the Tribunal may have an inadequate knowledge of the affairs of the bankrupts if the Trustees are not a party to the proceedings.  Further, he submitted the Inspector‑General does not represent the interests of creditors.

Mr McGarvie submitted no good reason has been advanced that the Inspector-General, is incapable of upholding the interests of the Trustees.  In addition, he pointed out that a relevant consideration was one of cost on that point he referred to the absence of any undertaking in relation to the additional costs incurred by his clients in relation to the reinstatement application.  In the context of administrative review, I have considered the fact that the Trustees are the primary decision-makers.  However, it is not uncommon in some of the other jurisdictions of the Tribunal that there be an intermediate tier of review of primary decisions prior to an application to the Tribunal.  In the present case, the Inspector‑General presumably had before him or her all relevant material in relation to the Trustees' decision and also, as I note
from reading the decision under review, correspondence on behalf of the bankrupts from their solicitors.  The Inspector-General, armed with this material made decisions affirming the decisions of the Trustees.

Furthermore, the Inspector-General is required by s37 of the AAT Act to lodge with the Tribunal, among other things, all relevant documents. Quite apart from the powers of the Inspector-General under s149M of the Bankruptcy Act to request information, I am in no doubt that the Trustees will cooperate with the Inspector‑General to ensure that all relevant material is placed in the possession of the Inspector-General.

I also take into consideration that irrespective of whether the Trustees are a party to the substantive proceedings or not, there is nothing to suggest they would not be available to give evidence of the tribunal.  Objectively, to my mind, there is nothing before me to indicate, nor has it been my experience in other matters, that the Inspector‑General will do other than participate fully in the review process before the Tribunal.  In that sense, there is a commonality of interest with that of the Trustees in relation to the decisions under review.

In Re Marine World (Victoria) and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262, the Tribunal commented in relation to the exercise of discretion:

"The discretion must of course be exercised normally with regard paid to all the circumstances of the proceeding and the interests of the parties and each of the persons applying to be made a party.  It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal, as was pointed out in Re Control Investment Pty Limited and Australian Broadcasting Tribunal, No 1 (1989) 3 ALD 74. The Tribunal is required by the AAT Act to provide a fair hearing and to carry out its review as expeditiously as the subject matter of the review permits - see in particular s33(1(b) and s39.

The increased cost of the proceedings to the applicant and the respondent which will result from the joinder of additional parties to the proceedings is a factor to be taken into account."

It seems to me inevitable that the joinder of the Trustees, notwithstanding their interest in the proceedings, would increase the cost to the parties.  Apart from cost considerations, there is also, in my view, a public interest factor.  A raison d'etre of the Tribunal is to provide a forum for reviewing decisions as expeditiously as reasonably possible, and without the burden of cost orders except in limited circumstances.

I have considered, although not necessarily referred to, all of the points raised by Mr O'Hara and Mr McGarvie this morning.  In my opinion, the factors in favour of the exercise of discretion to join the Trustees as a party to the proceedings are outweighed by the opposing considerations.

Accordingly, the application is refused."

On 24 October 1995 the applicants sought the order of review.  It has to be borne in mind that the decision of the first respondent involves an exercise of discretion which should not be interfered with by this Court unless any of the three grounds of review is made out.  It is not for this Court to substitute its view of whether or not the applicants as
trustees should have been joined.  The question is whether any of the grounds of review is established.

Grounds and particulars of review

The grounds on which the application is brought are unreasonableness, failure to take into account relevant considerations and error of law in failing to evaluate and weigh the relevant factors and to explain why the factors against joinder prevailed.  The particulars in support of the first two grounds are substantially similar and may be considered as follows.

(a)"The fact that the applicants were the primary decision‑maker". 

As a result of the statutory scheme provided by ss149P and 149Q of the Bankruptcy Act, the original decision-maker is not the party before the AAT.  Rather, it is the Inspector‑General who has made the decision on the review and so must be a party in accordance with the AAT Act, s30(1)(b) of the AAT Act.  The reasons of the first respondent expressly took into account that the applicants were the primary decision‑makers.

(b)"The recognition by s149P(3) of the Bankruptcy Act of the applicants' interest in any proceedings challenging the applicants' decision to object to discharge them from bankruptcy".

Section 149P, so far as is relevant, reads as follows:

"(1)   If the Inspector-General:

(a)reviews a decision; or

(b)refuses a request by a bankrupt for a review of a decision;

the Inspector-General must give written notice to the bankrupt, to the trustee, and, if the trustee is a registered trustee, to the Official Receiver, of the Inspector‑General's decision on the review or on the request, as the case may be.

(2)The notice must:

(a)set out the decision; and

(b)refer to the evidence or other material on which the decision was based; and

(c)give the reasons for the decision.

(3)In the case of a decision reviewing the decision to file a notice of objection, the notice must also include a statement to the effect that, if the bankrupt, or the trustee or Official Receiver, is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.

(4)In the case of a decision refusing a request to review the decision to file a notice of objection, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.

(5)A contravention of subs(3) or (4) in relation to a decision does not affect the validity of the decision.

(6)...".

It will be observed that s149P(3) was not applicable to the matters in the present proceedings because the Inspector‑General had not reviewed the decision to file a notice of objection. Rather, the Inspector-General, having refused the requests to review the decisions, was required by s149P(4) to include a statement to the effect there set out. That statement so appeared. It is apparent that in the case of a decision refusing a request to review the decision to file a notice of objection, there is no statutory obligation from that sub-section to give notice of the right of appeal to the trustees. If it is the case that s149(3) recognizes the trustees' interest in appealing proceedings challenging their decision, that cannot vitiate the decision of the first respondent. Firstly, because the trustees right to so challenge is subject to the AAT Act and so to s30 of that Act.  Secondly, because s149(4) is arguably as supportive of the trustees not being parties when the review of the decision is refused.

(c)"The Applicants' detailed knowledge of the financial affairs of the second respondent and their antecedents".

(d)"The fact that the applicants are in a position to provide evidence of a quality, type and competence which cannot be expected from the Inspector-General in Bankruptcy".

(e)"By virtue of lack of familiarity with the affairs of the second respondents, the inability of the Inspector‑General in Bankruptcy during the hearing to respond promptly and effectively to matters raised by the second respondents".

1. "The first respondent found that there was a commonality of interest between the applicants and the Inspector‑General in Bankruptcy when such was not the case".

These are all matters pressed by counsel for the applicants in oral argument before the first respondent and set out in some detail in a letter from the solicitors for the applicants relied upon by counsel in submissions.  It is apparent they were responded to by counsel for the second respondents, who submitted the absence of the applicants as parties did not have the result that their knowledge or evidence or familiarity of the matter would not be available to the Inspector-General.  It is also said the first respondent appears to have paid no regard to the second respondents' deceitful past and the damning findings in the Supreme Court as to their credibility.  The significance of that being that those findings require a greater than usual degree of vigilance in testing the evidence given by them.  Again this provides no ground for assuming that the Inspector-General, who has relied upon those findings in his decisions, would not be alive to the necessity to obtain from the trustees such evidence as would allow him to rebut any challenge to those findings.

The office of Inspector-General in bankruptcy is created by s11 of the Bankruptcy Act. By s11(2), the office is vested with such powers and functions as are conferred or imposed by the Act. Section 12(2) provides the Inspector-General may, require a trustee to answer an inquiry made to him in relation to a bankruptcy, in which the trustee is, or has been, engaged. There is no reason to suppose that if the conduct of the case before the Administrative Appeals Tribunal is left to the Inspector-General he will not exercise such powers as are available to him to obtain all relevant evidence from the applicants as trustees or that he will not seek to fulfil his duty to defend the decision taken by him which would be under review before the Tribunal.

For the applicants it is also said the first respondents' view that the trustees will cooperate with the Inspector-General and the Inspector-General will participate fully in the review processes is speculation with disastrous consequences to the creditors if it proves to be unfounded.  In my opinion that submission entirely overlooks the statutory responsibilities cast upon the Inspector‑General by the Bankruptcy Act and the power arising in the Inspector‑General under that Act to require cooperation from the trustees.

In my opinion both in his reference to a written submissions and oral submissions the first respondent made apparent the issues raised in these particulars had been activated before
him and that he was required to weigh them against the counter arguments put on behalf of the second respondents.

One matter argued on this application was that the applicants were unaware until receipt of the affidavit sworn in this proceeding by Mrs Spinelly on 17 December 1995 of the content of the requests by each of the second respondents for review (which have been summarised above) and so were unaware of the continued non-acceptance by each of them of the findings of fact in the civil proceedings previously described.  It is submitted on behalf of the applicants that if the second respondents are to maintain their case before the Administrative Appeals Tribunal on that basis, it will be necessary for the trustees to be present to ensure that all appropriate evidence is brought to the attention of the Tribunal. 

In my opinion there are two responses to that submission.  The first is that the Tribunal will be bound by the findings of fact in the civil proceeding and such matters will not be open for re-contest before it.  Even if that is not the case, there is no reason to suppose that the Inspector‑General in the proper exercise of his statutory functions would not occasion the appropriate evidence to be made available to him by the applicants as trustees to enable him to answer those contentions and so to defend the decisions which he had previously reached.

(f)"The first respondent accepted without any evidence that the joinder of the applicants would increase the costs to the parties and, implicitly, that this would result in the proceedings not being heard as expeditiously as possible".

(j)"The first respondent placed undue emphasis on the increased cost and length of the proceedings anticipated from a joinder of the applicants without any evidence in that regard and without any or any proper regard to the opposing factors."

In accepting the inevitability that the joinder of the applicants as trustees would increase the cost to the parties, the first respondent was accepting the submission put to him in oral argument on behalf of the second respondents that separate representation of the applicants would self-evidently increase the time and cost of any application.  In my
opinion such proposition must be self-evident and did not require evidence to support it:  cf Re Sew Eurodrive Pty Ltd and Collector of Customs (1994) 20 AAR 376 at 380.

On the subject of costs, reliance was placed upon the decision of the Administrative Appeals Tribunal (Senior Member Handley) in Re Sew Eurodrive (supra) particularly at 380-1. There, while it was accepted that the joinder of a party would no doubt increase costs, this was not sufficient for the discretion to be exercised against joinder. That was a case where an Australian manufacturer of gear boxes sought to be represented on review of a decision cancelling two tariff concession orders. It may be distinguished from the present circumstances where the effect of the appointment of the applicants as parties would be that the assets of the bankrupt estate would be charged to some degree with costs in circumstances where the second respondents seek to minimise the depletion of that estate by the incurring of more costs.

(g)"The first respondent failed to recognise that the Administrative Appeals Tribunal has the power to regulate proceedings before it such that those proceedings do not become unnecessarily protracted".

It is the case that there is no express reference by the first respondent to this factor.  It cannot, however, be a matter upon which it could be said that the first respondent, as a Deputy President of the Administrative Appeals Tribunal, would not have in mind.  Nor can it be the case that the power to regulate proceedings can be exercised in a way which would restrain an additional party from fully exercising its right of calling evidence and making oral submissions or in a way which inhibits the exiting parties from so doing.

(h)"The first respondent failed to have any or any due regard to the fact that in the absence of being made a party the applicants would be denied a right of appeal".

Examination of the oral submissions of counsel for the applicants in reply makes it apparent that this matter was fully argued before the first respondent and so could be taken to be included among the points raised before him and referred to in his written reasons as matters considered without specification.  Furthermore, it assumes a non-
preparedness on the part of the Inspector-General to pursue appeal rights when the case is such that he should do so.

(l)"The first respondent's decision to refuse the applicants application for joinder was contrary to the usual practice in the Administrative Appeals Tribunal of joining parties whose interests are clearly affected by the decision under review unless there is some compelling reason for the discretion to be exercised against an order for joinder".

Counsel for the applicants was unable to produce any authority in which the application of this principle to trustees could be exemplified. 

Nor is the ground necessarily a correct statement of principle or practice. The discretionary nature of the joinder power in s30(1A) of the AAT Act is made clear in Re C v Collector of Customs (NSW) (1983) 5 ALN N222 and Re Marine World (Victoria) Ltd v Minister for Arts, Heritage and the Environment (1986) 10 ALD 262. See also Re City of Doncaster and Templestowe and the Minister for Community Services (1987) 6 AAR 105 at 110, which was referred to in the reasons of the first respondent.
Unreasonableness

So far as concerns the unreasonableness ground, I consider it cannot be said the decision of the first respondent is so unreasonable that no reasonable person could have arrived at it (cf Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 230) or that it was "so devoid of any plausible justification that no reasonable body or persons could have reached" it (Bromley London Borough City Council v Greater London Council [1983] 1 AC 768 at 821). In my opinion this much appears from the written statement of reasons of the first respondent. The particulars relied upon in support of the ground do not show the case to be otherwise.

Failure to consider relevant matters

So far as concerns the reliance on the failure to take into account relevant considerations it is simply not the case that the matters relied upon were not taken into account.  In
substance this ground is sought to be pressed in terms of the third and remaining ground of error of law involving failure to evaluate and weigh the relevant factors.

Error of law

It is said this occurred because of the reliance of the first respondent upon points raised before him but not necessarily referred to in his written reasons. 

I do not consider that on a plain reading of the written reasons there is any failure to evaluate or weigh the various factors.  In my view the reasons are clearly directed to weighing the submissions for the applicants against those for the second respondents.  This is not a case where the applicants have succeeded in demonstrating from a consideration of all the reasons leading to the decision, or from the decision itself, that a consideration has not been taken into account in a real sense: Turner v Minister for Immigration (1981) 35 ALR 388 at 392.

For these reasons I consider that the case for the applicants does not make out any of the grounds for review with the consequence that no ground is made out for interfering with the exercise of the discretion by the first respondent.  Accordingly the application should be dismissed.

I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date:23 May 1996

APPEARANCES

Counsel for the Applicant:  Mr G J O'Hara

Solicitors for the Applicant:  Kott Gunning

Counsel for the First Respondent:                 No appearance

Solicitors for the First Respondent:               No appearance

Mrs Spinelly appeared in person and represented Mr Spinelly.

Date of Hearing:  13 May 1996

Date of Judgment:  23 May 1996